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United States v. Peterson

United States District Court, E.D. Virginia, Richmond Division

April 24, 2019




         Leonus Stevenson Peterson moves to suppress evidence that the police obtained following a traffic stop on June 22, 2018. Specifically, Peterson asks the Court to suppress evidence seized following a car search conducted with and without a warrant, evidence seized following a strip search, and statements he made to the police after the strip search. For the reasons that follow, the Court will suppress the fruits of the strip search but not the fruits of the car search.

         I. BACKGROUND

         A. The Overdose and Resulting Investigation

         On November 29, 2017, Elizabeth Rosie died from a heroin overdose in Caroline County, Virginia. Officers from the Tri-County Drug Task Force-including Special Agent Steven J. Aziz of the Drug Enforcement Agency ("DEA"), Investigator Benjamin Sadler of the Caroline County Sheriffs Office, and Investigator Michael Lewis of the Caroline County Sheriffs Office[1]- responded to the overdose at Mrs. Rosie's home. When the officers arrived, they spoke to Mrs. Rosie's husband, Gregory Kenneth Rosie. Mr. Rosie told the officers that the source of the heroin was a Richmond-based dealer called "Doe or Doughboy." Hr'g Tr. 276:17-18, Feb. 26, 2019 (Dk. No. 121); Mar. 8, 2019 (Dk. No. 122).

         Mr. Rosie also told the officers how he obtained the heroin that resulted in his wife's overdose. He said that he paid Jenna Rose Queen, who in turn contacted the Richmond dealer. Several times a week, Marcus Watson drove Queen to Richmond to meet the dealer. The officers later interviewed Queen and Watson, who corroborated Mr. Rosie's account.[2] Queen identified Peterson as "Doe or Doughboy." Id.

         Queen also showed the officers her text messages with Peterson. After Queen texted Peterson with her requests, Queen and Peterson arranged to meet "at the usual place"-a location near a McDonald's in the Shockoe Bottom neighborhood of Richmond. Id. at 279:10. Queen said that she met Peterson inside his black SUV for several minutes outside the McDonald's. After completing the transaction, Watson drove Queen back to Caroline County, where she distributed heroin to Mr. and Mrs. Rosie and others.

         Based on the information the officers learned from Rosie and Queen, the officers began conducting regular surveillance of Peterson. Aziz testified that the officers watched Peterson meet "with several people throughout the course of the night for very short times." Id. at 282:15-16. For example, the officers-including Aziz and Lewis-followed Peterson to a Wal-Mart parking lot in Richmond on May 29, 2018. The officers watched Peterson get out of his car, walk to the driver's side window of another car, and hand the driver an object. The officers later identified the driver as Eric Davis, a heroin user who overdosed in August, 2017.

         Based on the surveillance of Peterson and the interviews with Queen and Watson, Aziz obtained a GPS tracking warrant for two of Peterson's cars, including a white Chevrolet van and a black Mercedes-Benz.[3]

         B. The Planned Traffic Stop and Warrantless Search

         On June 22, 2018, the GPS tracker showed the black Mercedes traveling north from Richmond to Baltimore, Maryland. The officers found Peterson's travel "out of the ordinary" because he tended to remain in the Richmond area. Id. at 285:18-19. After arriving in Baltimore, Peterson made a brief stop on West Fayette Street, which Aziz knew to be "a heroin corridor."[4]Wat 288:15-16.

         Aziz knew that Peterson had a suspended driver's license, so he decided to instruct the other officers to conduct a traffic stop during Peterson's trip back to Richmond. Aziz first contacted Special Agent Steven Davis of the DEA field office in Washington, D.C. Davis located the Mercedes traveling south on Interstate 95 near Woodbridge, Virginia, and confirmed that Peterson was the driver.

         Lewis, Sadler, Trooper Derek Russell of the Virginia State Police, and other officers met in a parking lot near an exit ramp off Interstate 95 in Spotsylvania County, Virginia. Russell ran Peterson's name and date of birth in his database, which confirmed that Peterson had a suspended driver's license and showed a 2005 arrest from Maryland involving "large quantities of drugs [taped to] the inside of [Peterson's] thigh." Id. at 148:6-7. Lewis, Sadler, and Russell decided to conduct "a normal traffic stop" to avoid exposing the larger Task Force investigation. Id. at 149:1.

         At approximately 8:00 p.m., Russell[5] spotted the black Mercedes traveling south on Interstate 95. He saw Peterson hit the brakes "extremely hard[, ] causing the front of the vehicle to go down." Id. at 149:24-150:1. Russell also noted that Peterson did not have has headlights on, despite the drizzling rain and overcast weather conditions. After Russell pulled onto the highway, Peterson moved to the center lane closely behind a black Dodge Charger, which Aziz was driving. Russell then turned on his emergency equipment and stopped Peterson.

         After Peterson pulled over on the right shoulder, Russell approached the passenger's side of the car and asked Peterson for his license and registration. Russell observed that Peterson "was sweating profusely, was trembling, in an attempt to locate his license." Id. at 151:7-8. After Peterson admitted that he had a suspended license, Russell ordered him to get out of the car and to step in front of Russell's patrol car in the middle of the shoulder to avoid oncoming traffic. At that time, Lewis pulled up in an undercover car a short distance behind Russell's marked patrol car. Russell returned to his patrol car to verify that Peterson had a suspended license.

         Next, Russell signaled for Lewis to pull closer to the scene of the traffic stop. Lewis then got out of his car with Walker, a drug detection dog.[6] Lewis approached Peterson, explained that he had a drug detection dog with him, and told Peterson that he planned to "screen" Peterson's car and his person. A "screen" of a car involves a two-step process, which Lewis uses "every time" Walker detects drugs in the field. Id. at 26:3-5. First, Walker completes an "undirected pass" or a "dog pass," in which Lewis allows Walker to run around the car to try to detect drugs without any direction. Id. at 25:13-21. Second, Lewis completes a "detailed pass," in which Lewis directs Walker "to go up and down on the vehicle" to try to detect drugs on "different areas of the vehicle that [Walker] might not have gotten on [his] own undirected." Id. at 25:24-26:2.

         To complete the undirected pass on Peterson's car, Lewis first released Walker by the front of the car. Walker "casted" by the driver's side headlight, id. at 24:25, meaning that he went "back and forth" on the car to try to "pinpoint the source [of the odor]." Id. at 26:17-24; see also Id. at 28:12. When cars travel at high speeds-as the Mercedes had been before the stop-the wind pushes any drug odor from the inside of the car to the front of the car, where Walker casted. See Id. at 27:2-5. According to Lewis, a drug detection dog indicates to its handler that it smells drugs either through an "alert" or a "response." Id. at 30:5-9. For Walker, "[a]n alert is any change in behavior that is consistent with when [Walker is] within the odor of a narcotic." Id. In contrast, "a response is an actual sit." Id.; see also Id. at 49:15-18. In other words, Lewis refers to an "alert" as some weaker indication that Walker smells drugs than a "response."[7] Lewis interpreted Walker's casting by the driver's side headlight as an alert.[8] Id. at 26:11-14.

         Next, Lewis began the detailed pass by directing Walker to the passenger's side door,[9] where Walker stopped and looked at Lewis. Lewis interpreted Walker's behavior by the passenger's side door as an alert. See Id. at 32:23-33:2 ("He is telling me there's an odor of narcotic specifically in that vehicle.").

         After Lewis completed the detailed pass, he told Peterson that he would screen Peterson's person. When Walker smelled Peterson's right hand, Walker stopped, paused, and looked back at Lewis. Lewis interpreted Walker's behavior as an alert.[10] See Id. at 35:6-11.

         Meanwhile, Peterson told Russell that he was returning to Richmond from a trip to northern Virginia. After Russell asked Peterson if he had anything in the car, Peterson told Russell that he recently had the car detailed, so Russell would not find anything. Id. at 154:8-13. Lewis told Peterson that Walker had alerted on the Mercedes and Peterson's person. When Russell asked Peterson why Walker alerted on his right hand, Peterson said that he had held "some marijuana" in his hand earlier that day before returning to Richmond, but that the marijuana did not belong to him. Id. at 154:15-23.

         Based on Walker's alert on Peterson's right hand and Peterson's suspended driver's license, Russell handcuffed Peterson and patted him down. Peterson "seemed to be pretty calm" when Russell patted him down from his neck to his arms. Id. at 158:20-21. When Russell got within two to three inches of Peterson's groin area, however, Peterson "clinched up fairly tightly." Id. at 158:22-24, 159:14-16. After the initial pat down, Peterson asked Russell if he could leave the scene.[11]

         When Russell patted down Peterson a second time, Peterson again clinched as Russell got to his groin area. Russell also noted that Peterson was wearing multiple layers of clothing.[12] Russell tried unsuccessfully to untie the waistband of Peterson's sweatpants to see if Peterson had illegal drugs hidden under his clothes. Russell then told Peterson that he was under arrest for driving on a suspended license and explained that he would be taking Peterson to Pamunkey Regional Jail to appear before a magistrate.

         Lewis and two other officers began searching the Mercedes on the side of the road. Lewis found three cell phones and a box of Mannite in a black trash bag. Mannite is the brand name for a mannitol product-a sugar alcohol often used as a cutting agent for illegal drugs. See Id. at 37:16-24. Shortly thereafter, Lewis called to have the Mercedes towed to Bud's Towing in Caroline County.

         C. The Search of the Car and Phones Pursuant to a Warrant

         After the officers had the Mercedes towed, Sadler applied for a search warrant for the Mercedes. In Sadler's affidavit in support of the search warrant, he described the traffic stop in detail. He also described Walker's "casting" by the front of the Mercedes and Walker's alert by the passenger's side door. See PL's Ex. 4, at 3 & Attach. A. Sadler further noted that "illegal drug distributors commonly utilized traps and other hiding locations for their illegal narcotics to avoid detection by Law Enforcement." Id. at Attach. A. The Magistrate Judge issued the search warrant, authorizing Sadler to search for "[h]eroin, cocaine, methamphetamine, ecstasy, all derivatives, and cutting agents." Id. at 2. Other than a wallet and various personal effects, the officers did not find any additional evidence other than the Mannite and three cell phones.[13]

         After the officers searched the car at Bud's Towing, Aziz applied for search warrants for the three cell phones. See PL's Exs. 1-3. In Aziz's affidavit in support of the search warrants, [14] he explained his knowledge of "the manner and methods by which narcotics traffickers conduct their illegal businesses." Id. at [f 6. Aziz noted that "narcotics traffickers frequently use numerous cellular telephones to further their illegal activities and to evade detection from law enforcement." Id. at If 6(c). Aziz further explained that drug traffickers maintain "[r]ecords and other evidence" of drug transactions in their cell phones, id. at If 6(f), including "wire and electronic data concerning telephonic contact, and text messages with co-conspirators, as well as contact lists, 'friends' lists[, ] and other compilations of contact information for co-conspirators," id. at |f 6(g).

         After providing a detailed account of the traffic stop and the facts leading up to the search of the car, Aziz explained that he thought "the three cellular telephones located in Peterson's car each contain evidence of Peterson's drug trafficking activities." Id. at If 19. According to Aziz, "[i]t is also common for illegal drug traffickers to utilize separate cellular telephones for customers and for sources of supply." Id. Because "sources of supply will provide lower-level drug traffickers with a cellular phone to be used solely for the purpose of contacting the supplier," those cell phones "would contain evidence to help identify the source of supply, as well as the locations, frequency[, ] and methods of the sourcing of illegal drugs to the drug trafficker." Id. Additionally, drug traffickers often "have a phone that is used for customers and coconspirators to contact the drug trafficker," so the phones "would contain evidence to help identify the drug trafficker's coconspirators and customers, as well as the locations, frequency[, ] and methods of the drug trafficker's distribution activities." Id.

         Aziz sought (1) "[a]ll records on the telephones and storage device;" (2) "[e]vidence of user attribution showing who used or owned the phones at the time the things described in this warrant were created, edited or deleted;" (3) "[r]ecords evidencing the use of the Internet;" and (4) "[p]hotographs, video recordings[, ] or images either taken on or downloaded onto the target devices, that depict Peterson, Peterson's associates, travel, expensive assets[, ] . . . large sums of currency, illegal narcotics, firearms, [and] other indicia of illegal drug trafficking." Id. at Attach. B. United States Magistrate Judge David J. Novak issued the search warrants on June 28, 2018, finding that Aziz's affidavits established probable cause to search the cell phones. After searching the contents of the cell phones, the officers corroborated Queen's account of her text messages with Peterson.

         D. The Strip Search

         After Russell arrested Peterson at the roadside, Russell drove Peterson to Pamunkey Regional Jail to appear before a magistrate. Before entering the facilities, Russell took Peterson through the jail's sally port.[15] While still inside the sally port, Russell twice asked Peterson if he had anything illegal, and warned that bringing contraband into the jail would be a felony offense. Peterson told Russell that he did not have anything illegal. Russell escorted Peterson from the sally port to the magistrate's intake area, which is open to the public.[16]

         Russell obtained a warrant from the magistrate and served it on Peterson. The magistrate conducted a bond hearing and granted an unsecured bond for Peterson. The jailor on duty, Sergeant Richard Hagen, came out from the intake area to process Peterson. At Pamunkey, standard procedure for processing involves fingerprinting and photographing defendants. Hagen ...

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